1.7 La televisión digital terrestre en el Perú
1.7.1 La experiencia de TV Perú
J. Ciborski indicates that while there are differences in approach to the issue of energy security, their basic or common part lies always in their concern about the security of supply with respect to all forms of energy and quantity capable of covering demand (Ciborski, 2006, p. 129). Indeed, energy security can be presented as a single-dimensional problem, based on the security of supply (narrow definition), or as a multi-dimensional issue (broader definition). Literature has also provided a division based on an internal dimension, characterized by secondary legislation, and an external dimension characterized by a disparate hierarchy of objectives embedded in various hard law and soft law measures (Glachant, Ahner, 2012, p. 17–18).
EU regulations on security of supply covers areas such as: oil, natural gas and electricity as well as infrastructure as such (Talus, 2013, p. 99). In other words, security of supply requires the availability of energy resources, a capacity to exploit and convert these resources to suitable energy carriers, as well as the existence of a secure system for energy distribution (Jonsson et al., 2015, p. 49). The approach was to address supply security issues in both the general energy market directives, as well as in a number of specific instruments focusing on security of supply (Talus, 2013, p. 99).
Although equating energy security to ensuring security of supply is sometimes seen as the incorrect approach (Nowacki, 2010) since it is but one among many issues covered by EU energy policy, yet it is fair to say that the greatest importance should be attached specifically to this very matter. This stance is driven by at least two factors. First, security of supply should be treated as the basis or starting point for all other elements that build the concept of energy security. Only uninterrupted access to energy resources can ensure security at every stage (from the national level to households) and through this – its sustainability or competitiveness. Second, as the latter can be achieved by using national tools like legislation, security of supply is based on, at least, regional cooperation, since diversification of suppliers depends on many external factors. These two key factors support the view
16 Ibidem. 17 Ibidem.
that energy security equated with security of supply should be immanently and inseparably connected with the development of a single, competitive energy market in the EU (Rewizorski, Rosicki, Ostant, 2013, p. 63). In addition, as it was indicated in the EC Communications on the EESS and the Energy Union Framework Strategy, ‘energy security is inseparable from a well – functioning and fully integrated internal market, moderation of energy demand, increasing energy production in the EU, i.a. through renewable energy sources, as well boosting research and innovation in the Energy Union’18.
Definitions of ‘security of supply’ (or ‘security of energy supply’) can be found in both hard law and soft law issued by EU institutions. The EC Green Paper of 1994 defined security of supply as ‘ensuring that future essential energy needs are satisfied by means of sharing of the internal energy resources and strategic reserves under acceptable economic conditions and by making use of diversified and stable externally accessible sources’19. According to the Green Paper of 2000 ‘the overriding goal of security of supply in the energy field is to ensure, for the good of the general public and the smooth functioning of the economy, the uninterrupted physical availability on the market of energy products at prices for all consumers (both private and industrial), in the framework of the objective of sustainable development enshrined in the [Amsterdam] Treaty’20. The EC Green Paper of 2006 proposed a common European energy policy which would enable Europe to face future energy supply challenges and their effects on economic growth and the environment. The EC indicated three crucial objectives in this context: sustainability, competitiveness and security of supply21. Voices are also frequent that point to the pressures to rebalance energy priorities in order to accommodate the security of supply aim, which could also be an indication of a more paradigmatic shift in which energy security is found to be so prioritized as to systematically override other energy-related aims (Herranz – Surrallés, Natorski, 2012, p. 133).
Ensuring energy supply security in the EU is seen as the core aim of Europe’s energy policy on the basis of Article 194(1) TFEU22, which provides the legal basis for the development of the common energy policy in its external
18 European Energy Security Strategy COM (2014) 330 adopted on 28 May 2014 and Energy
Union Framework Strategy COM (2015) 80.
19 Green Paper – For European Union Energy Policy, COM (94) 659, Brussels 23.02.1995. 20 Green Paper – Towards a European strategy for the security of energy supply, COM/2000/0769. 21 Commission Green Paper of 8 March 2006: A European strategy for sustainable,
competitive and secure energy [COM(2006) 105 final – not published in the Official Journal], available at: http://eur-lex.europa.eu/legal-content/PL/TXT/?uri=celex:52006DC0105.
22 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning
of the European Union, OJ 2012 C 326. According to this provision: 1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve
dimension in the spirit of solidarity among EU Member States (Nowak, 2012, p. 62-73). EU secondary legislation contains a variety of definitions of ‘security of supply’. For instance, Directive 2005/89/EC on the safeguarding of the security of electricity supply and infrastructure investment23 speaks of ‘security of electricity supply’ as the ability of an electricity system to supply final customers with electricity. Directives 2009/72/EC and 2009/73/EC (respectively concerning common rules for the internal market in electricity24 and natural gas25) take on a broader approach and describe ‘security’ as both security of supply and the provision of electricity, as well as technical safety. According to literature, security of supply arguments are used in both of these directives to justify the imposition of unbundling requirements upon attempts of third countries, which are undertaken in order to acquire transmission system operators in the EU (Johnston, Block, 2012, p. 259).
Although security of supply seems to be deeply rooted in EU legislation, the same notion can also be a matter of some constraints and limitations. In this context, certain national rules dedicated to the domestic promotion of security of supply can raise questions under EU rules on free movement in the Internal Market or those on market competition. Any measures introduced into national legislation must be based on the requirements developed by the Court of Justice of the EU (hereafter, CJEU), which may justify, prima facie,
trade restrictions26 and the principle of proportionality (Johnston, Block, 2012, p. 241). The jurisprudence of CJEU provided, on the one hand, examples such as Campus Oil27, where security of supply justified a restriction falling within the notion of ‘public security’ within the meaning of the Treaties. On the other hand, CJEU recognized cases where the Campus Oil approach was assessed and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union;
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
23 Article 2b of the Directive 2005/89/EC of the European Parliament and of the
Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, 4.02.2006, p. 22).
24 Article 2 of the Directive 2009/72/EC of the European Parliament and of the Council
of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55).
25 Article 2 of the Directive 2009/73/EC of the European Parliament and of the Council
of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ C 252, 27.8.2011, p. 94).
26 See: 120/78 Rewe – Zentral AG v. Bundesmonopol für Branntwein, ECLI:EU:C:1979:42. 27 72/83 Campus Oil v. Ministry for Industry and Energy, ECLI:EU:C:1984:256.
as a gate for potential exceptions28. This refers not only to the free movement of goods, but also to the free movement of capital and as an example in cases concerning ‘golden shares’ (Johnston, Block, 2012, p. 242–244).
The same doubts have arisen with reference to competition issues and energy market liberalization. The Poseidon29 case regarding a gas pipeline is a good example here where the EC, before conditionally granting a derogation, had analysed not only the increase of security of supply at national and EU level (that is the positive effect) but also other elements. A derogation was foreseen in Article 22 of the Gas Directive (2003/55/EC) which exempts major new infrastructures from the third party access rules provided in that Directive for a limited period of time in order to make the investment possible30. Comments found in literature indicate that although security and internal market conditions speak in favour of granting such exemptions, the EU competition objective of the liberalization process, and the need to balance long-term and short-term efficiencies, mean that proportionality constraints are increasingly rigid (Talus, 2013, p. 98).
As pointed out in the EC Communication concerning EESS, the EU imports 53% of its energy. Energy dependency relates to crude oil (almost 90%), natural gas (66%) and, to a lesser extent, to solid fuels (42%)31. The most urgent issue as far as the security of energy supplies in the EU is its strong dependence on a single external supplier. This is particularly noticeable when it comes to gas and electricity, albeit the matter of gas supply seems to be the subject of far more debate. According to literature, European energy security policies have recently focused on ensuring natural gas supplies for two reasons. First, the security of gas supply is more challenging than other energy sources, such as oil or coal. Second, Russia is the single or dominant supplier of natural gas to a number of EU Member States (Schaffer, 2015, p. 182). According to the EC, six Member States were in 2013 dependent on Russia as the single supplier of their entire gas imports. At the same time, energy supplies from Russia accounted for 39% of the total EU natural gas imports and 27% of the EU’s total gas consumption. With regard to electricity, three Member States (Lithuania, Latvia and Estonia) were dependent on one external operator for the functioning and balancing of their electricity
28 See e.g. C – 398/98 Commission v. Greece, ECLI:EU:C:2001:565.
29 Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September
2006 laying down guidelines for trans-European energy networks and repealing Decision 96/391/ EC and Decision No. 1229/2003/EC.
30 http://europa.eu/rapid/press-release_IP-07-691_en.htm
31 Communication from the Commission to the European Parliament and the Council,
network32. Especially here, activities related to the strengthening of supply security should be accompanied by the protection of critical infrastructure such as gas and electricity transmission systems33. The protection of energy infrastructure should be regarded as a component of broader supply security policy (Hoyos Pérez, 2012, p. 75).